8224 Writ of error denied by Supreme Court. In substance and generally speaking, appellants' brief urges but two grounds for reversal, which are: First, that the plaintiffs failed to show title to any of the land and failed to show common source of title; and, second, that appellant Lumpkin showed title by limitation. It is true that the plaintiffs did not show a chain of title from the government to themselves, but we are of opinion that they proved that they and the defendants were claiming title under a common source. They claimed title as the children and heirs of A. A. and J. W. Story, and they showed that the defendants were claiming under the Storys, because their vendors Moffett and Locklar held under deeds from the Storys; and the plaintiffs' title was superior to the title conveyed by the Storys to Moffett and Locklar by deeds retaining a vendor's lien for purchase money which had not been paid. When the defendants pleaded limitation against the purchase-money notes, the plaintiffs had the right to change their cause of action, rescind the contract of sale, and recover the land. White v. Cole, 87 Tex. 500, 29 S.W. 759. It is true that the decree rendered in the suit brought by the heirs of Timothy R. Hawkins, the original grantee of the land, against Moffett and Locklar and others, recites and establishes the fact that Moffett and Locklar had title to a three-fifths undivided interest in the respective tracts claimed by each by and under their pleas of five and ten years' limitation. But it was not made to appear that the titles thus held were not derived from the Storys and conveyed by the deeds from the latter. In fact, the decree referred to recites the fact "that the defendants and each of them, and those under whom they and each of them severally claim, have title to an equal undivided interest of three-fifths of the respective tracts claimed by each of the defendants," etc. Moffett and Locklar were two of the defendants therein referred to. They held under deeds from the Storys, and, in the absence of any testimony tending to show that they had bought from or were then holding under some other person, we think the decree referred to must be construed as reciting the fact that the title by limitation referred to was either acquired by the Storys before they sold to Moffett and Locklar, or was based upon the connected adverse holding of the Storys and Moffett and Locklar. Hence we conclude that it does not appear that Moffett and Locklar had or asserted title to any of the land derived from a source separate and distinct from their claim under the Storys; and, this being the case, we hold that it was shown that both *Page 302 parties were claiming under a common source of title.
It is not necessary for us to determine whether or not the decree rendered in the former suit was binding upon the plaintiffs in this suit. They have seen proper to abide by that decree, and have recovered in this suit only the amount of land that was awarded to Moffett and Locklar by that decree. Nor is it material that appellant Lumpkin had acquired the interest of James R. McMahon and his attorneys in the decree referred to. He did not thereby acquire any interest in the three-fifths of the land that was awarded to Moffett and Locklar.
Having held that the proof shows that plaintiff and the defendant Lumpkin were claiming under common source of title, it follows that limitation was not available as a defense. Moffett and Locklar having accepted deeds from the Storys, their possession and that of Lumpkin, their vendee, was not adverse to the Storys and those succeeding to their rights, until Moffett and Locklar, or their vendees, repudiated the Story title, which, it seems, was not done until they pleaded limitation to the suit brought upon the purchase-money notes.
No error has been shown, and the judgment is affirmed.